Family sues over teen's photo in mobile phone ad

Back in 2005, Russell Christoff was surprised to discover his own face on the labels of Taster's Choice coffee jars. There he was, breathing in the aroma of a fine cup of joe. "What am I doing on this jar?" he wondered. Then the sometime actor/model remembered posing for that shot many years earlier during a photo shoot for Nestle. He was paid a small fee for that shoot and as far as he knew, that was the end of it. After discovering his image on the coffee jars, he sued Nestle for using his likeness without his permission. He was initially awarded $15.6 million, but Nestle appealed the decision and earlier this year, the California Court of Appeals reversed the award.

Today, 16-year-old Allison Chang finds herself in a similar situation. Except she didn't pose at a photo shoot. Her image was taken by Australia's Virgin Mobile phone company from the photo-sharing Web site Flickr. The photo of Chang flashing a peace sign was taken at a car wash by Chang's youth counselor, who then posted it on his Flickr page. When he posted it, he was required to choose a license attribution for the use of the photo. He chose a sharing license from Creative Commons that essentially allows anyone to use the photo as long as they credit the photographer and say where the photo was taken.

Virgin Mobile Australia is using the photo as part of their "Are You With Us Or What?" ad campaign, which features photos downloaded from Flickr along with ad slogans. For Chang's photo, the words "Dump your pen friend" are superimposed over the photo, and the tag line "Free text virgin to virgin" appears along the bottom of the ad.

Chang and her family, who live in Dallas, say it is the tag line that upsets them. They claim that her church friends have seen it and that is has damaged her reputation and exposed her to ridicule from peers who have Googled her. As for the photographer, Justin Ho-Wee Chong, he wasn't credited as such and his claim of breach of contract is part of the lawsuit, which seeks unspecified damages.

This case does seem to raise some important issues. The fine print at the bottom of the ad contains the Web address for Chong's Flickr page, which happens to include his name. Does that suffice? And what about Chang, who had no control over how her photo was licensed? It seems to me her real beef might be with the photographer, who allowed the photo to be used for commercial purposes. There is an interesting discussion on the topic at Flickr. What do you think?

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ReaderComments (Page 1 of 1)

I think some people are either too sensitive or too greedy. This girl is due remuneration for her prominence in the photo, either from Virgin Mobile or from the photographer after he gets his money from them, which he should. Virgin Mobile may have attempted to credit him, but it was minimal. However, the amount should be only what is reasonable for a photo and a reasonable punitive add on. After all, the photographer’s intent was to release the picture for public use.

Virgin Mobile apparently has an attorney telling them what they can get away with rather than what is right... typical.

As far as the reaction of her church friends, I think she needs either to change churches, friends, or both: "Judge not least ye be judged” was apparently not covered in their summer bible study series.

The party at fault here is the person who posted the pictures under a CC license. I usually get a release from the parents if their child is easily recognizable in one of my photos before I take it out of a protected space. Some parents don't like pictures of their kids being available online, and that is something you have to respect.

Google doesn't do facial recognition in its searches (yet), so unless someone posted the ad using a filename similar to "allisonchang.jpg" or using alt text like "Allison Chang in Virgin Mobile ad", it would be virtually impossible to google for her and have that picture come up. Thanks to the Streisand effect, ALL of the results related to her on the first few pages are about the lawsuit against Virgin Mobile (which include links to the offending picture).

While Virgin may have the right to use the photo, with proper credit, due to the CC license, I believe the model still needs to give her okay for her likeness to be used. That is, anyone can take a picture of anyone (in a public space, and with some limitations), but in order to use that image for commercial purposes, the business (or the photographer) must have a model release from anyone in the photo.

Frankly, I'm surprised that they got themselves into this mess. They could have easily taken a similar photo with a paid model, or purchased one from a site like iStock where the licensing and rights are explicitly known.

But, yes, the girl does deserve some remuneration for her likeness being used.

If the picture was indeed posted under CC license allowing commercial use, it seem like someone didn't read the oh-so-boring small print. Let this be a lesson: read the rules and regulations you agree to follow!

TheTalkies

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As AOL continues to grow and evolve we are taking necessary actions to ensure our efforts and resources are
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